IN DEFENSE OF THE AMERICAN SURVEILLANCE STATE Dr. Gabriel Schoenfeld* ABSTRACT The term “American surveillance state” is something that has come into use by fierce critics of U.S. government counterterrorism efforts, efforts that necessarily contain surveillance as a critical element. A body of opinion has emerged arguing that thanks to the ubiquitous eyes of the National Security Agency, the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security, and thanks also to the widespread distribution of myriad new forms of surveillance technology, privacy in America is being destroyed and George Orwell’s dark vision of Big Brother is on its way to realization. This Article rejects this characterization, and asserts that current counterterrorism efforts are an effective and appropriate response to ongoing threats. While history teaches us the government may at times overstep its bounds, even in today’s current national security climate the U.S. government’s approach is less intrusive than it has been in the past and is critical for protecting the safety of the American people. ARTICLE The term “American surveillance state” is something that has come into use by fierce critics of U.S. government counterterrorism efforts, efforts that necessarily contain surveillance as a critical element.1 A body of opinion has emerged arguing that thanks to the ubiquitous eyes of the National Security Agency, the Central Intelligence Agency, the Federal Bureau of Investigation, the Department of Homeland Security, and thanks also to the widespread distribution of myriad new forms of surveillance technology, privacy in America is being destroyed and George Orwell’s dark vision of Big Brother is on its way to realization.2 * Senior Fellow, Hudson Institute. 1. See, e.g., James Eli Shiffer, NSA Whistleblower Warns of Surveillance State, STAR TRIBUNE (June 6, 2015), http://www.startribune.com/nsa-whistleblower-warns-of- surveillance-state/306381431/. 2. See, e.g., Julian Assange, Op-Ed., Who Should Own the Internet?, N.Y. TIMES (Dec. 4, 2014), http://www.nytimes.com/2014/12/04/opinion/julian-assange-on-living-in- a-surveillance-society.html; Bill Keller, Op-Ed., Living with the Surveillance State, N.Y. TIMES (June 16, 2013), http://www.nytimes.com/2013/06/17/opinion/keller-living-with- the-surveillance-state.html (“On many fronts, we are adjusting to life in a surveillance 1121 1122 Drake Law Review [Vol. 63 A new genre of books appeared after 9/11 proffering variations on this argument. For example, 2003’s The Soft Cage, by Christian Parenti, argues that government and private surveillance today is a continuation of the system in place during slavery, only much more advanced.3 The 9/11 hijackings, argues Parenti, have themselves been “hijacked by the worst elements of the political class,” who are using surveillance “to steer fear and anger toward the destruction of traditional American liberties.”4 In the wake of the Snowden revelations, others have developed similar arguments, only with greater passion and sometimes more exaggerated claims. Thus we have volumes like Dragnet Nation: A Quest for Privacy, Security, and Freedom in a World of Relentless Surveillance by Julia Angwin;5 The Watchers: The Rise of America’s Surveillance State by Shane Harris;6 and Surveillance Nation, a collection of essays on the subject drawn from The Nation magazine, collated by Richard Kreitner.7 Glenn Greenwald, a journalist and Snowden collaborator, has probably been the most prolific purveyor of this strand of thought, authoring numerous articles and books, including most recently, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State.8 With these works in circulation, this line of thought has become widely accepted in some portions of American elite thinking. Among many liberals and on the left it is taken as a given that, as the New York Times editorial page contends, we are suffering from the abuses of a “runaway intelligence state, relinquishing bits of privacy in exchange for the promise of other rewards.”); Bill Mears & Evan Perez, Judge: NSA Domestic Phone Data-Mining Unconstitutional, CNN (Dec. 16, 2013), http://www.cnn.com/2013/12/16/justice/nsa-surveillance-court-ruling/; Dominic Rushe, NSA Surveillance Goes Beyond Orwell’s Imagination—Alan Rusbridger, THE GUARDIAN (Sept. 23, 2013), http://www.theguardian.com/world /2013/sep/23/orwell-nsa-surveillance-alan-rusbridger. 3. CHRISTIAN PARENTI, THE SOFT CAGE: SURVEILLANCE IN AMERICA FROM SLAVERY TO THE WAR ON TERROR 3 (2003). 4. Id. at 3. 5. JULIA ANGWIN, DRAGNET NATION: A QUEST FOR PRIVACY, SECURITY, AND FREEDOM IN A WORLD OF RELENTLESS SURVEILLANCE (2014). 6. SHANE HARRIS, THE WATCHERS: THE RISE OF AMERICA’S SURVEILLANCE STATE (2014). 7. SURVEILLANCE NATION: CRITICAL REFLECTIONS ON PRIVACY AND ITS THREATS (Richard Kreitner, ed., 2014). 8. GLENN GREENWALD, NO PLACE TO HIDE: EDWARD SNOWDEN, THE NSA, AND THE U.S. SURVEILLANCE STATE (2014). 2015] In Defense of the American Surveillance State 1123 community.”9 The “mass warehousing of everyone’s data,”10 undertaken by what the Times calls the “surveillance state,” is a danger to our civil liberties and the Constitution itself.11 Such views are not confined to the left. On the right, Senator Rand Paul, who is running for President, has denounced government surveillance programs that he said have put our right to privacy under assault.12 “I believe what you do on your cellphone is none of [the government’s] damn business,” he told an audience at Berkeley to enthusiastic applause.13 Senator Ted Cruz, also running for President, has joined in this chorus, explaining that the U.S. government is “implementing what appears to be an unprecedented and intrusive surveillance system on private American citizens.”14 Advocates of this line of thought advance four core arguments. First, surveillance in the United States is dramatically expanding.15 Second, the level of surveillance is disproportionate to the threat faced.16 Third, the 9. Editorial, Edward Snowden, Whistle-Blower, N.Y. TIMES (Jan. 1, 2010), http://www.nytimes.com/2014/01/02/opinion/edward-snowden-whistle-blower.html [hereinafter Edward Snowden, Whistle-Blower]. 10. Editorial, Congress Can Stop Privacy Abuse, N.Y. TIMES (June 7, 2013), http://www.nytimes.com/2013/06/08/opinion/congress-can-stop-privacy- abuse.html?_r=0. 11. Shane Harris, Op-Ed., Giving In to the Surveillance State, N.Y. TIMES (Aug. 22, 2012), http://www.nytimes.com/2012/08/23/opinion/whos-watching-the-nsa-watchers .html; Keller, supra note 2. 12. See Nick Gass, Rand Paul: I’m Not Being Unreasonable, POLITICO (May 26, 2015), http://www.politico.com/story/2015/05/rand-paul-nsa-bulk-data-collection-objecti ons-118278.html. 13. Jeremy W. Peters, Rand Paul, Warning About Spying, Faults Obama, N.Y. TIMES (Mar. 19, 2014), http://www.nytimes.com/2014/03/20/us/politics/rand-paul-speaks- at-berkeley.html. 14. Dan Roberts & Spencer Ackerman, US Lawmakers Call for Review of Patriot Act After NSA Surveillance Revelations, THE GUARDIAN (June 10, 2013), http://www.theguardian.com/world/2013/jun/10/patriot-act-nsa-surveillance-review. 15. See Bruce Schneier, NSA Intimidation Expanding Surveillance State, USA TODAY (Aug. 27, 2013), http://www.usatoday.com/story/opinion/2013/08/27/nsa- snowden-russia-obama-column/2702461/; Surveillance Under the USA Patriot Act, ACLU, https://www.aclu.org/surveillance-under-usa-patriot-act (last visited Sept. 15, 2015). 16. See Editorial, Surveillance: A Threat to Democracy, N.Y. TIMES (June 11, 2013), http://www.nytimes.com/2013/06/12/opinion/surveillance-a-threat-to-democracy.html (“The issue is not whether the government should vigorously pursue terrorists. The question is whether the security goals can be achieved by less-intrusive or sweeping 1124 Drake Law Review [Vol. 63 surveillance operates without sufficient controls and outside the bounds of law.17 And fourth, the surveillance is ineffective.18 In sum, opponents of the government’s surveillance efforts argue the efforts are ubiquitous, lawless, reckless, and unnecessary. What is one to make of these arguments? Without question, distrust and suspicion of government snooping is a healthy impulse in democracy and very much in line with America’s best traditions.19 The U.S. has seen abuses of surveillance in the past: from J. Edgar Hoover’s depredations at the FBI;20 to Richard Nixon’s antics during Watergate;21 to the abuses uncovered by the Church and Pike Committees in the 1970s.22 But in the case of current counterterrorism methods, the suspicion of government surveillance is wrongheaded and potentially—if acted upon—dangerous. The primary source of that danger, of course, is the bleak security means, without trampling on democratic freedoms and basic rights.”). 17. See ACLU v. Clapper, 785 F.3d 787, 812 (2d Cir. 2015) (finding that the government’s collection of bulk telephone metadata was not allowed under the Patriot Act); Harry J. Enten & Ed Pilkington, NSA Surveillance: Guardian Poll Finds Majority in US Want Greater Oversight, THE GUARDIAN (June 13, 2013), http://www.the guardian.com/world/2013/jun/13/nsa-surveillance-guardian-poll-oversight. 18. Ellen Nakashima, NSA Phone Record Collection Does Little to Prevent Terrorist Attacks, Group Says, WASH. POST (Jan. 12, 2014), https://www.washington post.com/world/national-security/nsa-phone-record-collection-does-little-to-prevent-ter rorist-attacks-group-says/2014/01/12/8aa860aa-77dd-11e3-8963-b4b654bcc9b2_story.ht ml. 19. See Conor Friedersdoorf, Why are People so Distrustful of Big Government?, THE ATLANTIC (June 18, 2013), http://www.theatlantic.com/politics/archive/2013/06 /why-are-people-so-distrustful-of-big-government/276963/; Ari Shapiro, Distrusting Government: As American as Apple Pie, NPR (Apr. 19, 2010), http://www.npr.org /templates/story/story.php?storyId=126028106.